What You Should Know, What to Look For, and What to Be Wary Of
The OAA continues to review RFPs and contracts with the intent of identifying requirements and/or provisions that:
may be uninsurable;
require an architect or Licensed Technologist OAA to contract out of their professional obligations as set out in the Architects Act and Regulation 27;
are a contravention of either piece of legislation; or
unreasonably increase their obligations beyond those at law.
Neither the following nor the following constitute legal advice. This is the 13th in a series of excerpts from Practice Tip 39.1 that should assist practices in making a 'go/no go' decision with respect to responding to an RFP or in contract negotiations. Members should familiarize themselves with all of 39.1 and refer to it when reviewing RFPs, and bid and contract documents.
To read previous excerpts in this series, click here.
2. Examples of Specific Contract Language of Concern Examples of Specific Contract Language of Concern
2.13.Hierarchy of Documents
Architects are familiar with the hierarchy of documents in a construction contract. The same concept applies to the documents in a consulting contract.
Example Clause 1:
The provisions of this Request for Proposal document shall take precedence over the more general provisions of the OAA Contract.
Implications:
Depending on which clauses “more general provisions” is interpreted to apply to, those provisions of the RFP govern and are unlikely to be coordinated with the rest of the contract.
Given that RFPs are typically less precise than contracts or supplemental conditions, including the RFP in the contract may result in significant unexpected changes.
The other result is that all the provisions relating to the preparation and submission of a proposal (which are now irrelevant) become part of the contract.
Example Clause 2:
In the event of any conflict between the Exhibits, the provisions of these documents will prevail in the following order of precedence:
i. Any Change Order issued pursuant to this Purchase Order
ii. Exhibit “A” – Purchase Order
iii. Exhibit “B” – Purchase RFP (including any addenda)
iv. Exhibit “C” – Proposal (including any clarifications)
Implications:
Be mindful of the hierarchy of documents especially when the RFP or bid documents are included in the contract. If the contract is silent, then the provisions of the RFP or bid documents are in effect.
In the case above, nothing revised or proposed in the architect’s proposal has any effect unless all other documents are silent about the issue addressed. If the other documents have anything to say, they govern over the architect’s proposal.
Recommendations
The recommendation is to speak with the issuing authority about how they are organizing their RFPs and to suggest that they be organized similar to architectural bid packages so that the instructions to bidders and the RFP itself do not have to be included in the contract.